The Facts: My mother’s brother, Frank, never married and did not have any children. He died with a Will that left everything to my mother. Although Frank and my mother had a brother, John, Frank did not mention John in his Will. Unfortunately, my mother died a year before Frank. I am my mother’s only heir. In an effort to determine if Frank had any other possible heirs, I hired a private investigator who located a great niece (John’s granddaughter) named Mary.

The Question: Is Mary entitled to share in Frank’s estate or am I in line to inherit the entire estate?

The Answer: Fortunately for you, there is an anti-lapse statute in New York which is applicable to your situation. Under the statute, you are the sole beneficiary of Frank’s estate.

How it Works: In order to explain how the anti-lapse statute works, you need to understand the terminology used in the statute. The “testator” is the person whose Will is being probated. The people who receive assets under the terms of the Will are “beneficiaries”. “Issue” refers to the children, grandchildren and successive generations of individuals who can trace their blood line directly back to the testator. A “bequest” is a gift that is set forth in a Will. When a bequest “lapses”, the Will is read as if the bequest was never made and any assets set forth in the bequest are distributed to other beneficiaries.

The New York anti-lapse statute is designed to prevent the lapse of bequests made to certain groups of people. The statue governs when a testator makes a bequest in his Will and the beneficiary dies before the testator. If the deceased beneficiary is someone other than the testator’s own issue or siblings, the bequest lapses and the Will is read as if the bequest was not made. For example, if Frank made a $50,000 bequest in his Will to a friend and the friend died before Frank, the $50,000 bequest would lapse and the funds would not go to the friend’s children but, would go to other beneficiaries under the Will. If, as is the situation here, the testator makes a bequest to a sibling and the sibling dies before the testator, the bequest does not lapse. Instead, the bequest vests in the issue of the beneficiary. In other words, the assets allocated to the deceased sibling will pass to the sibling’s children or grandchildren.

Since Frank and your mother were siblings, and your mother died before Frank, the bequest made to your mother will pass to you. However, if both your mother and John were mentioned in the Will as beneficiaries, Mary would, in fact, be entitled to a share of Frank’s estate since the anti-lapse statute would dictate that the share allocated to John would pass to her.

There is often confusion among the beneficiaries of a Will when one of the beneficiaries predeceases the testator. One way to avoid this confusion is to update your Will not only when the people you name as executors and trustees die, but also when a beneficiary dies. Naming contingent beneficiaries in your Will also helps bring certainty and clarity to the probate process.

This article first appeared in the December 8, 2011 issue of the Times Beacon Record Newspapers.

 
Linda M. Toga of The Law Offices of Linda M. Toga, P.C. is an East Setauket, New York attorney with a general law practice focusing on estate planning, real estate, marital planning, small business services and litigation.